Monday, October 28, 2013

socialNsecurity Chap 13

The cardinal rule in
the Social Security Disability Evaluation Process is to appeal everything. Do
not take no for an answer. The only claimant who does not win his case and
receive benefits is the one who does not appeal to a high enough level. An
attorney or a paralegal representative is not necessary to file an appeal. It
is quite simple. If you can read and write, you can file an appeal. Anyone with
a high school education can do it. It is easier than applying for a credit
card. The appeal form is a one page standard government form. It does not have
to be typed. All you have to do is fill in the blanks.

The appeal period is 60
days. It is the same at every level of the review process. Whether you receive
an initial determination denial or a reconsideration denial, an ALJ decision or
an Appeals Council Determination, the deadline for an appeal is 60 days from
receipt of the denial letter. The SSA will presume that you received the denial
5 days after the date the letter was mailed.The statistics appear to indicate
that ALJs are wrong more than 90% of the time when they deny a claim.

The statistics appear to indicate that ALJs are wrong more
than 90% of the time when they deny a claim.

Two ALJs can reach exactly opposite decisions
based on identical evidence. Whether the claimant is approved or denied
benefits is simply a matter of luck in getting the right ALJ. If he alleges the
same Alleged Onset Date (AOD then he will be paid retroactive benefits back to
the date he argues she first became unable to work.

Therefore, if your best efforts
fail, do not lose heart. Just appeal. More than 95 of 100 claimants who apply
for benefits will collect. It is only a matter of time. Appealing is simple no
matter what stage of the process you find yourself.

To appeal a denial of an initial claim, complete
Form SSA-561-U2 (Request for Reconsideration). If you are appealing the denial
of disability benefits, you'll also need to complete Form SSA-3441-BK
(Disability Report -- Appeal).

If you have been receiving disability benefits
and you wish to appeal a decision to stop your disability benefits, you'll need
to use a different form. In that case, you'll complete Form SSA-789-U4 (Request
for Reconsideration -- Disability Cessation) and Form SSA-3441-BK (Disability
Report -- Appeal).

The forms ask you for basic information, such as
your name and Social Security number. You will also need to state the reasons
why you think you were unfairly denied benefits. When you submit your form(s),
you can attach other material for the administrators to consider, such as
recent medical records or a letter from a doctor or employer about your ability
to work. All of the forms are available at your local Social Security office or
can be downloaded from the agency's website at www.ssa.gov.

The
importance of prior ALJ decisions

Let me repeat, more than 95 of 100 claimants who
apply for benefits will collect. It is only a matter of time. The claimant in
the following cases should never lose heart. Even when you have been through
the entire Disability Determination Process from beginning to end, and it
appears that you have lost. You can start over at the beginning. You can file a
new application for benefits using the same Alleged Onset Date (AOD). If you are
assigned a different ALJ, you can even win your case at the initial ALJ
hearing.

Why is that?Surprisingly, one ALJ does not monitor or give any precedential value to
the decision of another ALJ. Social Security ALJs do not recognize “stare
decisis”. Stare Decisis is a Latin term meaning "to stand by that which is
decided." It is a principal that precedent decisions are to be followed by
the courts. It is a general maxim that when a point has been settled by
decision, it forms a precedent which is not afterwards to be departed from.
Social Security Disability Determination judges do not follow this maxim. In
deciding cases they exercise complete judicial independence.

If you do not win your case at the initial ALJ level
continue to appeal. Do not stop until your case is Reversed and Remanded. The
following cases are examples.

Before: SCHROEDER and RAWLINSON, Circuit Judges, and
COLLINS, District Judge.[ 1 ]Appellant Linda Taylor ("Taylor")
appeals the district court's summary judgment in favor of the Commissioner of
Social Security ("Commissioner"). The district court affirmed the
decision of the Administrative Law Judge ("ALJ") denying Taylor
Disabled Widow's Insurance benefits and Supplemental Security Income benefits
under Titles II and XVI of the Social Security Act. The ALJ concluded, on the
basis of step five in the five-step sequential analysis in 20 C.F.R.
§404.1520(a)-(g), that Taylor was not "disabled" within the meaning
of the Act, 42 U.S.C. § 1382c(3), because she retained "the capacity for
work that exists in significant numbers in the regional economy."

Taylor contends on appeal that the ALJ erred by rejecting
the opinion of her evaluating psychologist. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the district court's decision affirming the
ALJ, and we reverse and remand for an award of benefits.

The ALJ disregarded the opinion of Dr. Leslie Lessenger—
who conducted a consultative psychological examination of Taylor— and instead
relied on the contradictory opinions of non-treating, non-examining physicians
Dr. Glenn Ikawa and Dr. Evangeline Murillo. To disregard the uncontradicted
opinion of an examining physician or treating physician, an ALJ must provide
clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1996). If contradicted by another doctor, as here, an examining or a treating
physician's conclusions may be rejected only for specific and legitimate
reasons supported by substantial evidence in the record. Id. at 830-31.

The ALJ failed to offer "specific and legitimate
reasons" for crediting Drs. Ikawa and Murillo, non-treating, non-examining
doctors, over Dr. Lessenger, an examining doctor. Andrews v. Shalala, 53 F.3d
1035, 1043 (9th Cir. 1995). Dr. Lessenger opined that Taylor had the following
non-exertional limitations — her concentration was negatively affected by her
emotional distress and physical condition; she was unlikely to function in a
work situation where demands were made upon her; she would not do well
interacting with others; and she was limited in her ability to deal with
changes in a routine work setting due to her emotional instability. Drs. Ikawa
and Murillo, upon review of Taylor's medical file, concluded that Taylor-was
capable of relating to peers and supervisors, but should avoid the general
public; was capable of adapting to work-like settings and routine changes in
the work place; and was capable of maintaining attention, concentration,
persistence, and pace. The ALJ concluded Taylor had a mental residual functional
capacity that closely reflected the opinions expressed in Drs. Ikawa's and
Murillo's assessment. However, the ALJ's conclusions differed from the opinion
expressed by Dr. Lessenger and the ALJ offered no reasons why Dr. Lessenger's
opinion was not credited. We conclude that the ALJ erred by according greater
weight to the opinions of non-examining, non-treating physicians, than to the
opinion of Taylor's examining physician without providing "specific"
and "legitimate" reasons supported by "substantial evidence in
the record" for doing so. See Lester, 81 F.3d at 830-31. As such, we
credit Dr. Lessenger's opinion "as a matter of law." Id. at 834.

"The decision whether to remand a case for additional
evidence or simply to award benefits is within the discretion of the
court." Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998). "Where
the record is complete, however, we award benefits to the claimant."
Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993). We conclude that remand
for an award of benefits is appropriate because, once Dr. Lessenger's opinion
is credited, "there are no outstanding issues that must be resolved before
a determination of disability can be made." Benecke v. Barnhart, 379 F.3d
587, 593 (9th Cir. 2004). Had the ALJ properly credited Dr. Lessenger's
opinion, Taylor would have been entitled to benefits as a matter of law. The
vocational expert testified that a person of Taylor's age, education, and work
experience, in addition to the non-exertional limitations outlined by Dr.
Lessenger, would not be able to perform other work in the national economy.

Accordingly, we reverse the judgment of the district court
and remand with instructions to remand the case to the ALJ for an award of
benefits.[ 3 ]REVERSED and REMANDED.Rawlinson, Circuit Judge, concurring:

I concur in the result.

HERE IS ANOTHER NINTH CIRCUIT CASE WHERE THE JUDGES DID NOT
AGREE.

VAN SICKLE v. ASTRUE

TINA K. VAN SICKLE,
Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration, Defendant-Appellee.

Tina Van Sickle appeals the district court's grant of
summary judgment in favor of the Commissioner of Social Security
("Commissioner") in Van Sickle's action challenging denial of her
application for disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act. We have jurisdiction under
28 U.S.C. § 1291, and we reverse and remand for calculation of benefits.
Because the factual and procedural background is familiar to the parties, we do
not recount it here.

Van Sickle contends that the administrative law judge's
("ALJ") residual functional capacity ("RFC") finding was
inconsistent with the opinions of examining psychologist Brent Geary, Ph.D.,
and non-examining reviewing state medical consultant Jocelyn Fuller, Ph.D. She
also contends that the ALJ failed to give sufficient reasons for rejecting
those opinions. We agree.

Both Dr. Geary and Dr. Fuller reported moderate mental
limitations, and Dr. Fuller opined that Van Sickle could work "in a low
stress setting." The ALJ found that the medical opinions of the
"consulting physicians and state agency medical consultants" were
"highly probative." Indeed, the opinions of the two doctors were
consistent with each other, were uncontroverted by other sources, and comprised
the sole medical opinion evidence regarding Van Sickle's mental limitations.
The ALJ, however, neither included these limitations in his RFC nor explained
why he rejected them, as he was required to do. See Widmark v. Barnhart, 454
F.3d 1063, 1066 (9th Cir. 2006) (stating that the Commissioner must provide
clear and convincing reasons for rejecting the uncontradicted opinion of an
examining doctor and specific and legitimate reasons that are supported by
substantial evidence in the record for rejecting the opinion of the examining
doctor if it is contradicted by another doctor) (citing Lester v. Chater, 81
F.3d 821, 830-31 (9th Cir. 1995)).[ 3 ]

Moreover, the ALJ only briefly summarized Dr. Geary's
opinion and did not even mention Dr. Fuller's opinion. Although the ALJ
"need not discuss all evidence presented to [him,]" he "must
explain why `significant probative evidence has been rejected.'" Vincent
v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (quoting Cotter v. Harris,
642 F.2d 700, 706 (3d Cir. 1981)) (emphasis in original); see also Social
Security Ruling 96-6p, 1996 WL 374180, *2 (S.S.A. 1996) (stating that ALJ
"may not ignore" the opinions of state agency medical consultants
"and must explain the weight given to the opinions in their
decisions"). Accordingly, we conclude the ALJ erred in failing to include
in his RFC the limitations identified by Dr. Geary and Dr. Fuller.[ 4 ]

We also conclude that remand for calculation of benefits is
appropriate because the vocational expert's (VE) testimony establishes that had
the limitations identified by Dr. Geary and Dr. Fuller been adopted, a
hypothetical individual with Van Sickle's RFC would not have been capable of
performing any of the jobs the ALJ identified at Step 5. See Smolen v. Chater,
80 F.3d 1273, 1292 (9th Cir. 1996) (holding that remand for an award of
benefits is appropriate "where (1) the ALJ has failed to provide legally
sufficient reasons for rejecting [the] evidence, (2) there are no outstanding
issues that must be resolved before a determination of disability can be made,
and (3) it is clear from the record that the ALJ would be required to find the
claimant disabled were [the] evidence credited").

We therefore reverse the judgment of the district court and
remand with directions that the district court reverse the Commissioner's
denial of benefits and remand for the calculation and payment of benefits.

REVERSED and REMANDED.

.

If a claimant has a
mental impairment or a history of substance abuse, it is possible that he would
not be able to concentrate on a full time job. As such he would be disabled.

The
Plaintiff brings this action pursuant to the Social Security Act (the Act), as
amended, Title 42 United States Code Section 405(g), to obtain judicial review
of a final decision of the Commissioner of the Social Security Administration
(the Commissioner) denying his claim for Disability Insurance Benefits and
Supplemental Security Income benefits under the Act.

The record
has been reviewed, including a transcript of the proceedings before the
Administrative Law Judge (ALJ), the exhibits filed and the administrative
record, and the pleadings and memoranda submitted by the parties in this case.
Oral argument has not been requested.

For
the reasons that follow, the decision of the Commissioner is AFFIRMED.

I.BACKGROUND

A.Procedural
History

Plaintiff
filed for a period of disability, Disability Insurance Benefits and
Supplemental Security Income benefits on April 11, 2005, alleging an onset of
disability on March 12, 2005, due to bipolar disorder, depression, and panic
attacks. R. 437, 498-501, 504, 510. His application was denied initially and
upon reconsideration. R. 471, 475. Plaintiff requested a hearing, which was
held on August 7, 2007, before Administrative Law Judge Gerald Murray
(hereinafter referred to as "ALJ"). R. 801-25. In a decision dated
October 31, 2007, the ALJ found Plaintiff not disabled as defined under the Act
through the date of his decision. R. 446. Plaintiff timely filed a Request for
Review of the ALJ's decision. R. 431. The Appeals Council denied Plaintiff's
request on June 25, 2009. R. 428. Plaintiff filed this action for judicial
review on August 26, 2009. Doc. No. 1.

B.Medical History
and Findings Summary

Plaintiff
was born on July 23, 1964 and was forty-three years old at the time of the
ALJ's decision. R. 446, 498. He completed the twelfth grade, and he has worked
in assembly, labor, and in a restaurant. R. 508, 513.

Plaintiff's
medical history is set forth in detail in the ALJ's decision. By way of
summary, Plaintiff complained of bipolar disorder, depression, stress, and
panic attacks. R. 504-05. After reviewing Plaintiff's medical records and
Plaintiff's testimony, the ALJ found that Plaintiff suffered from bipolar
disorder and a history of substance abuse, which were "severe"
medically determinable impairments, but were not severe enough to meet or
medically equal one of the impairments listed in Appendix 1, Subpart P,
Regulations No. 4. R. 439, 441. The ALJ determined that Plaintiff had no
exertional limitations and was able to perform jobs at all exertional levels,
however, due to perceived problems with concentration, the claimant was
able to perform only unskilled or semi-skilled work. R. 442. In making this
determination, the ALJ found that Plaintiff's allegations regarding his
limitations were not entirely credible for the reasons set forth in the body of
the decision. R. 444. Based upon Plaintiff's RFC, the ALJ determined that he
could perform past relevant work as an assembler, deli worker, or general
laborer. R. 445. Accordingly, the ALJ determined that Plaintiff was not under a
disability, as defined in the Act, at any time through the date of the
decision. R. 446.

Plaintiff
now asserts five points of error. First, he argues that the ALJ erred by
finding he had the RFC to perform unskilled or semi-skilled work at all
exertional levels. Second, he argues that the ALJ erred in evaluating his
credibility. Third, Plaintiff contends the ALJ erred by finding Plaintiff could
perform his past relevant work. Fourth, he asserts that the ALJ erred by
improperly applying the SSA standards to his beer drinking. For the reasons
that follow, the decision of the Commissioner is AFFIRMED.

II.STANDARD OF REVIEW

The
scope of this Court's review is limited to determining whether the ALJ applied
the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080
(11th Cir. 1988), and whether the findings are supported by substantial
evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). The
Commissioner's findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e.,
the evidence must do more than merely create a suspicion of the existence of a
fact, and must include such relevant evidence as a reasonable person would
accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995),( citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401
(1971)).

"If
the Commissioner's decision is supported by substantial evidence, this Court
must affirm, even if the proof preponderates against it." Phillips v.
Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004). "We may not
decide facts anew, reweigh the evidence, or substitute our judgment for that of
the [Commissioner.]" Id. (internal quotation and citation omitted).
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The
district court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the decision. Foote, 67 F.3d at
1560; accord, Loweryv. Sullivan, 979 F.2d 835, 837 (11th Cir.
1992) (court must scrutinize the entire record to determine reasonableness of
factual findings).

The
ALJ must follow five steps in evaluating a claim of disability. See
20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a
substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second,
if a claimant does not have any impairment or combination of impairments which
significantly limit his physical or mental ability to do basic work activities,
then he does not have a severe impairment and is not disabled. 20 C.F.R. §
404.1520(c). Third, if a claimant's impairments meet or equal an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled.
20 C.F.R. § 404.1520(d). Fourth, if a claimant's impairments do not
prevent his from doing past relevant work, he is not disabled. 20 C.F.R. §
404.1520(e). Fifth, if a claimant's impairments (considering his
residual functional capacity, age, education, and past work) prevent his from
doing other work that exists in the national economy, then he is disabled. 20
C.F.R. § 404.1520(f).

III.ISSUES AND ANALYSIS

A.Residual Functional Capacity

Plaintiff
claims that the ALJ should not have found him able to perform unskilled or
semi-skilled work (R. 442) in light of Plaintiff's limitations in completing a
normal workday and workweek. The Commissioner argues that substantial evidence
supports the ALJ's decision because the ALJ appropriately limited Plaintiff to
unskilled and semi-skilled work due to Plaintiff's perceived problems with
concentration.

Residual
functional capacity (RFC) is an assessment
based on all relevant evidence of a claimant's remaining ability to do work
despite his impairments. 20 C.F.R. § 404.1545(a); Lewis v. Callahan, 125
F.3d 1436,1440 (11th Cir. 1997). The focus of this assessment is on the
doctor's evaluation of the claimant's condition and the medical consequences
thereof. Id. Substantial weight must be given to the opinion, diagnosis
and medical evidence of a treating physician unless there is good cause to do
otherwise. See Lewis, 125 F.3d at 1440; Edwards, 937 F.2d at 583;
20 C.F.R. §§ 404.1527(d), 416.927(d). The ALJ must consider the findings of
state-agency, non-examining physicians as expert opinion evidence. 20 C.F.R. §§
404.1527(f)(2)(i), 416.927(f)(2)(i). State agency medical and psychological
consultants' opinions may be entitled to great weight if their opinions are
supported by the evidence in the record. 20 C.F.R. §§ 404.1527(f)(2)(i),
416.927(f)(2)(i); SSR 96-6p

Plaintiff
argues the ALJ failed to include limitations in concentration, persistence
and pace and his limitations in completing a normal workday or workweek in
his residual functional capacity assessment of Plaintiff. R. 442-45. Plaintiff
also contends that the ALJ erred in ignoring his testimony that he is unable to
work full time, can only work part time, and cannot keep jobs because he cannot
handle stress. R. 814, 817. Plaintiff testified that he can only pay
attention for short periods of time (R. 526), and that his depression
and bipolar disorder have an impact on his ability to concentrate to do a
job. R. 818. Plaintiff argues that he has a long work history of interruptions
that supports this evidence. R. 486-89. In addition, Plaintiff argues, the ALJ
did not consider the state agency psychologists' opinions and did not state
what weight he gave those opinions as required by Social Security Ruling 96-6p.

Plaintiff
argues that two state agency non-reviewing physicians opined that Plaintiff had
"significant" limitations in the ability to complete a normal workday
and workweek, citing R. 596, 638. Plaintiff argues that because the reviewing
psychologists chose "moderately limited" instead of "not
significantly limited" with regard to his "ability to complete a
normal work-day and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods," the psychologists "must have felt
the impairment was `significant.'" Doc. 13 at 6 n. 1. Plaintiff makes the
same argument concerning the state agency psychologists' opinions regarding his
limitations in the ability to carry out detailed instructions and maintain
attention, and concentration for extended periods, for which they opined he was
"moderately limited." R. 595, 637.

The
Commissioner points out that Plaintiff relies on the portion of the reviewing
psychologists' forms, which does not address the functional capacity
assessment. The portion Plaintiff relies on is contained in Part I of the RFC
assessment form entitled "Summary Conclusions." R. 596-97, 637-38.
However, it is Part III of the form which contains the state agency reviewing
psychologists' Functional Capacity Assessment for Plaintiff. R. 597, 639. The
Commissioner argues that the ALJ was not required to include any limitation on
Plaintiff's ability to complete a workday or workweek because neither state
agency psychologist opined that Plaintiff was limited in his ability to
complete a normal workday or work week in the Functional Capacity Assessment
contained in Part III of the form. The first psychologist, Dr. Weber, opined:

Functional
data shows:

Understanding and Memory. Would [be] able to understand and
remember simple instructions, but may have difficulties with more detailed
instructions.

Sustained Concentration and Persistence Would [be] able to
complete simple tasks/work procedures and be able to make work decisions but
may have difficulties with maintaining attention and concentration for extended
period and may have some difficulties carrying out detailed instructions. . .

Overall, capable of completing simple tasks on a regular
basis from a mental standpoint. He attempted to work at a car wash and stopped
due to physical problems He can cook, live alone, clean, shop, use money,
socialize and follow directions.

Neither
of the state agency psychologists indicated that Plaintiff was unable to
complete a normal workday or workweek. Plaintiff singles out and emphasizes too
heavily the reviewing psychologists' opinions that he was
"moderately" limited in his Plaintiff's ability to complete the
normal workday and workweek, as meaning that he would be "unable" to
work full time or be frequently absent. R. 597, 639. This limitation was not
substantial enough to be included by the psychologists as having an impact on
their opinions of Plaintiff's overall functional capacity and the ALJ's failure
to include it was not error.

Plaintiff
argues that the ALJ's limitation of Plaintiff to unskilled or semi-skilled work
does not adequately reflect Plaintiff's limitations because even unskilled and
semi-skilled work requires concentration, persistence, and pace, citing Vega
v. Commissioner of Social Security, 265 F.3d 1214, 1220 (11th Cir. 2001) (a
concentration problem is one of the difficulties should have been included in
the hypothetical question posed to the vocational expert). He argues that all
work requires the abilities to concentrate on what the employee is being paid
to do, to persist at some task, and to maintain a certain level of productivity
or pace. However, the state agency psychologists indicated that Plaintiff was
capable of understanding or carrying out simple or less detailed instructions
and was capable of concentrating, though not for an extended period. As the
Commissioner points out, these opinions were consistent with the medical
evidence from examining sources — cited by the ALJ — that reported Plaintiff's
ability to maintain attention and concentration was generally intact.

The
ALJ's summary of the mental health evidence in the record was quite
detailed:

A review of the treatment notes indicates the claimant's
ongoing substance abuse has been the primary reason for mental health
treatment.

The medical record indicates [Plaintiff] was involuntarily
sent to ACT Corporation in December 2003 for mental health treatment under the
Baker Act after he made suicidal statements following the death of his friend.
During an interview on December 11, 2003, [Plaintiff] admitted he had been
having a problem with alcohol since he was 17 years old. Within the previous
month, he had been drinking alcohol to the point where he had seizures when
coming off alcohol. His alcohol abuse was associated with CUI convictions,
disorderly conduct, assaults, and other difficulties. In January 2004, he was
examined by the Halifax Medical Center Emergency Department after the police
found him lying in the road, unable to stand or move. He asserted he had drunk
two 30-ounce beers just before calling the police, and reported he intended to
kill himself.

On May 1, 2004, he was again evaluated under the Baker Act
after he called police and reported he intended to kill himself. He stated he
had become very depressed after learning his ex-wife had gotten remarried and
had a child. Three days later, he was evaluated after drinking alcohol and
self-inflicting an abrasion to his right wrist. On November 2, 2004, the
claimant was taken to the hospital after reportedly having a seizure.
[Plaintiff] stated that he believed the seizure was alcohol related. He admitted
he had been drinking very heavily during the previous week because his father
had died. He reportedly experienced a seizure after stopping. On April 14,
2005, he required some medical treatment after being assaulted the previous
evening.

On September 3, 2005, the claimant underwent psychological
examination after he verbalized thoughts of suicide and exhibited ambivalence
about accepting treatment. The examiner noted the claimant was having trouble
accepting treatment recommendations because he was intoxicated. Testing
revealed a blood alcohol level of 348 [sic]. During the interview,
[Plaintiff] admitted to having histories of abusing alcohol, cocaine, and
marijuana. Mental status examination revealed no significant deficits with the
exception of intoxication-related impairments of judgment and insight. The
staff diagnosed alcohol intoxication, alcohol abuse/dependence, and history of
mood disorder. A GAF score of 71 to 80 was assessed. The examining psychologist
noted [Plaintiff] exhibited no evidence of a thought disorder or a mental
disorder. The claimant agreed to participate in an outpatient substance abuse
program. Subsequent treatment records from ACT indicate [Plaintiff] has
continued to have problems with alcohol abuse. On June 14, 2006, the claimant
reported he was doing well on his current regimen. He was continuing to drink
alcohol at times. He reported he was working as a day laborer between two to
four days per week.

Dr.
Oatley consultatively examined the claimant on September 22, 2004. During the
interview, [Plaintiff] reported he was taking Trazodone, BuSpar, Lexapro, and
Seroquel as prescribed by ACT. He admitted to several suicide attempts (by
overdose and attempting to hang himself). With respect to activities of daily
living, he reported he was able to prepare meals, bathe and dress himself, and
perform all household chores including laundry. He stated he was able to
complete routine household chores. He reported he enjoyed cooking and bowling.
Mental status examination revealed appropriate dress, a clean appearance,
appropriate attention span and activity level, and a cooperative and pleasant
mood. The examiner noted the claimant was able to complete almost three hours
of testing with only one short cigarette break. Memory testing revealed some
weakness in working memory. Dr. Oatley diagnosed alcohol abuse and depressive
disorder. He found no more than moderate limitations in the ability to respond
to work pressures in a usual work setting.

During the hearing, Neil Lewis, a medical expert, opined
that if the claimant's history of alcohol abuse was taken out of the picture,
the claimant would have no impairments severe enough to meet or equal a
listing. He confirmed the medical record indicated the claimant has had ongoing
problems with alcohol abuse as well as some depression. He stated the alcohol
abuse is a substantial problem, and probably the most significant. He stated
that at least one acute episode of depression reflected in the medical record
was secondary to acute alcohol intoxication. The medical expert pointed out
that the claimant's GAF scores have ranged from 30 to 80. He opined that if the
claimant were to stop abusing alcohol, the claimant would have no significant
problems meeting the minimum requirements of work. He further testified that if
the claimant stopped abusing alcohol, he might continue to exhibit some
residual depression that would more than minimally affect his ability to work
("severe" within the meaning of the Social Security Regulations). He
testified that the medical record does not establish that the claimant's
alleged bipolar disorder is substantially related to his history of drinking.

Dr.
Oatley's examination reported that Plaintiff's attention span and activity
level were appropriate; he showed some weakness in working memory which
required reorganization of memory. R. 656-57. His MMPI reflected an individual
who "self-presented as having much more severe problems than are actually
experienced. . . . [A]ll clinical scales were elevated with schizophrenia
exceeding 100. This self-presentation functioned to increase all clinical
scales and was not so severe as to render the profile invalid. This profile
pattern reflects someone who is tense, anxious, develops chronic aliments, has
trouble sleeping, is depressed and obsessive, and lacks insight." R. 657.
His prognosis (in September 2004) was "guarded, due to ongoing alcohol
abuse," but he noted Plaintiff understood the value of money and could
correctly compute simple mental purchases." R. 657.

In the
RFC finding, the ALJ explained that he limited Plaintiff to unskilled and
semi-skilled work due to Plaintiff's perceived problems with concentration. In
his decision, the ALJ found:

After careful consideration of the entire record, the
undersigned finds the claimant has no exertional limitations; thus, the
claimant is able to perform jobs at all exertional levels. However, due to
perceived problems with concentration, the claimant is able to perform only
unskilled or semi-skilled work.

With regard to concentration, persistence or pace, the
claimant has moderate difficulties. In
reaching this conclusion, the undersigned gives significant weight to the
claimant's statements that his ability to concentrate is significantly impaired
by his mental conditions. . . . In finding these degrees of limitation, the
undersigned gives significant weight [to] the well supported DDS reviewer
findings contained in Exhibits B-2f [Dr. Weber] and B-5f [Dr. Dearter].

The
ALJ considered and gave significant weight to the reviewing psychologists'
opinions regarding limitations on Plaintiff's concentration, persistence,
and pace. The ALJ then framed a hypothetical question to the VE, asking if
Plaintiff's perceived moderate impairment in maintaining concentration,
persistence, and pace would significantly impact his ability to perform
unskilled and semi-skilled work; the VE confirmed it would not. R. 822. The ALJ
then limited Plaintiff to unskilled and semiskilled work[ 2 ], which
would not require him to perform complex tasks. R. 442. Accordingly, the ALJ's
decision was based on substantial evidence.

B.Credibility

Plaintiff
asserts that the ALJ erred in evaluating his credibility to the extent he is
limited to unskilled and semi-skilled work in light of his testimony that he
can only work part time (R. 814), and cannot keep jobs because he cannot handle
stress (R. 817). Plaintiff again cites to the reviewing physicians' opinions of
"moderate" limitations in completing the workday and workweek as
"significant." He also cites his long work history and interruptions
in support. R. 486-89. The Commissioner argues the ALJ's discrediting on
Plaintiff's testimony was specific and based on the evidence.

The
ALJ is required to consider all of a claimant's statements about his symptoms,
including pain, and determine the extent to which the symptoms can reasonably
be accepted as consistent with the objective medical evidence. Foote v.
Chater, 67 F.3d 1553, 1559 (11th Cir. 1995); 20 C.F.R. § 404.1528. In
determining whether the medical signs and laboratory findings show medical
impairments which reasonably could be expected to produce the symptoms alleged,
the ALJ must apply the Eleventh Circuit's three-part "standard":

(1) evidence of an underlying medical condition and either
(2) objective medical evidence that confirms the severity of the alleged
symptoms arising from that condition or (3) that the objectively determined
medical condition is of such a severity that it can be reasonably expected to
give rise to the alleged symptom.

Although
the ALJ did not refer to the Eleventh Circuit's standard as such, he clearly
was aware of the governing standards for evaluating subjective complaints
because he cited the applicable regulations and Social Security Ruling
("SSR") 96-7p. R. 443-44. See Wilson v. Barnhart, 284 F.3d
1219, 1225-26 (11th Cir. 2002) (per curiam) (ALJ properly applied the Eleventh
Circuit pain standard even though he did not "cite or refer to the
language of the three-part test" as "his findings and discussion
indicate that the standard was applied"). The ALJ complied with these
standards in that he determined that Plaintiff had a condition that could give
rise to the alleged symptoms, because otherwise the ALJ would not be required
to assess the credibility of the alleged complaints.

Having
concluded that he had to make a credibility determination of Plaintiff's
subjective complaints, the ALJ articulated a reasonable basis for his
determination. In that respect, immediately after discussing Plaintiff's RFC,
the ALJ stated:

After considering the evidence of record, the undersigned
finds that the claimant's medically determinable impairment could reasonably be
expected to produce the alleged symptoms, but that the claimant's statements
concerning the intensity, persistence and limiting effects of those symptoms
are not entirely credible.

Though the medical evidence indicates the claimant is
somewhat impaired, it does not show he is debilitated to the point of being
unable to work. As already stated, the medical record indicates that most of
the claimant's hospitalizations, treatments, legal difficulties, and other
problems have largely arisen from his longtime history of substance abuse.
Treatment notes do not convincingly show that the claimant would have any
impairments severe enough to prevent him from sustaining employment if he
remained abstinent from alcohol and other substances. The claimant testified
that he has been working part-time as a kitchen worker. The medical record does
not indicate he would be unable to work full-time as a kitchen worker if he
chose to do so.

Though the claimant would be expected to experience some
residual depression when not abusing substances, the medical record does not
indicate he would be expected to experience depression severe enough to prevent
him from sustaining unskilled or semi-skilled work.

Though the medical record does not indicate the claimant
has been advised by mental practitioners to self-adjust his medication dosages
during the daytime, he has apparently been able to function well enough to
sustain part-time work while on less medication. Treatment notes do not
indicate the claimant has reported undue medication side effects that adversely
affect his ability to function.

[Plaintiff] is generally in excellent physical condition.
He has no particular problems with seeing, hearing, speaking, or smelling. His
abilities to sit, stand, and walk are unlimited. His abilities to bend, kneel,
crawl, crouch, and balance are unlimited. Though he has testified he is unable
to work in hot environments, the objective medical record does not indicate he
has a condition that renders him unable to do so. During the hearing,
[Plaintiff] admitted he has no physical conditions or illnesses that affect his
ability to work. All self-reported symptoms and limitations inconsistent with a
residual functional capacity for unskilled semi-skilled work are not well
supported by the weight of the evidence; thus, such self-reported symptoms and
limitations are not generally credible.

Where
an ALJ decides not to credit a claimant's subjective testimony about pain, the
ALJ must articulate specific and adequate reasons for doing so, or the record
must be obvious as to the credibility finding. Jones v. Dep't of Health and
Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991) (articulated reasons
must be based on substantial evidence). A reviewing court will not disturb a
clearly articulated credibility finding with substantial supporting evidence in
the record. Foote, 67 F.3d at 1561-62; Cannon v. Bowen, 858 F.2d
1541, 1545 (11th Cir. 1988).

Plaintiff
argues the ALJ failed to cite specific reasons for questioning Plaintiff's
testimony. Doc. 13 at 10. To the contrary, the ALJ offered specific reasons for
discrediting Plaintiff's subjective complaints, including inconsistencies
between Plaintiff's testimony and treatment records, as well as Plaintiff's
complete lack of any physical limitations, his activities of daily living, his
reported lack of medication side effects in the medical records, lack of
evidence that he could not work in a hot environment, and his ability to work
part-time. These are factors the ALJ is directed to consider. 20 C.F.R. §§
404.1529; 416.929. The ALJ noted that most of Plaintiff's problems resulted
from his history of substance abuse (and most arose prior to the alleged onset
date of March 2005), which had since been in remission, and his treatment notes
did not show that he had a mental impairment severe enough to prevent him from
working if he remained abstinent from alcohol and substance abuse. R. 444. The
ALJ's reasons are supported by substantial evidence.

C.History of
substance abuse

Plaintiff
claims that the ALJ did not apply the correct legal standards to the issue of
Plaintiff's alcohol abuse, which he argues was not a contributing factor to his
disability. The Commissioner argues that the ALJ did not find that Plaintiff
was disabled due to drug abuse or any other condition, merely noting
Plaintiff's history of substance abuse.

In
1996, Congress amended the statutory definition of disability under the Social
Security Act to preclude the award of benefits when alcoholism or drug
addiction is determined to be a contributing factor material to the
determination that a claimant is disabled. SeePub.L.No. 104-121 § 105; 42 U.S.C. § 423(d)(2). The regulations
thereunder describe how to determine whether the claimant's drug addiction or
alcoholism is a contributing factor material to the determination of
disability. According to the Regulations:

(B)(1) The key factor . . . in determining whether drug
addiction or alcoholism is a contributing factor material to the determination
of disability is whether we would still find you disabled if you stopped using
drugs or alcohol.

(2) In making this determination, we will evaluate which of
your current physical and mental limitations, upon which we base our current
disability determination, would remain if you stopped using drugs or alcohol
and then determine whether any or all of your remaining limitations would be
disabling.

(I) If we determine that your remaining limitations would
not be disabling, we will find that your drug addiction or alcoholism is a
contributing factor material to the determination of disability.

(Ii) If we determine that your remaining limitations are
disabling, you are disabled independent of your drug addiction or alcoholism
and we will find that your drug addiction or alcoholism is not a contributing
factor material to the determination of disability.

20
C.F.R. § 416.935(b). In this circuit, the claimant bears the burden of
proving whether he would be disabled if he stopped using drugs and alcohol.
Doughty v. Apfel, 245 F.3d 1274 (11th Cir. 2001).

The
ALJ found that "Though the claimant would be expected to experience some
residual depression when not abusing substances, the medical record does not
indicate he would be expected to experience depression severe enough to prevent
him from sustaining unskilled or semi-skilled work." R. 445. Plaintiff
characterizes the ALJ's finding as "these impairments and the limitations
they cause would simply disappear if [Plaintiff] stopped drinking beer when he
gets depressed." Doc. 13. Plaintiff argues that his substance abuse was
not a contributing factor to his disability and the ALJ erred in failing to
apply the correct standard to his independent mental impairments of depression
and bipolar disorder. Plaintiff points to his testimony that his underlying
depression causes him to drink alcohol (R. 815), and situational issues such as
his father's death in 2004 and the news of his ex-wife's remarriage worsened his
conditions and led to his drinking. R. 785, 791-96. He has been diagnosed with
substance abuse caused by depression and increased substance use from
relationship problems. R. 796. He has also been diagnosed with bipolar
disorder, without any substance abuse diagnosis, and low GAF scores in the
40-50 range from ACT Corporation, even with substance abuse in remission. R.
619-21, 623, 625, 682, 725, 731, 740, 797, 799. He argues that his drinking
alcohol is not a contributing factor material to the determination of
disability under the Social Security Regulations, but a by-product of his
mental impairment, depression and bipolar disorder, which have been diagnosed
during periods of sobriety and separate from any drinking problem.

The
Commissioner argues that the ALJ properly considered Plaintiff's history of
alcohol abuse in deciding his claim. Although the ALJ noted that most of
Plaintiff's problems arose from his history of substance abuse, the ALJ did not
find that he was not disabled due to substance abuse or any other condition. R.
439-46. The Court agrees that the ALJ's references to alcohol abuse were in the
context of discussing Plaintiff's history of substance abuse and the
credibility of his subjective complaints. R. 439-40, 444-45. The ALJ did not disqualify
Plaintiff from benefits because of the alcohol abuse, and in fact recognized
Plaintiff had recently become sober for several months, and that he would have
residual depression even without the alcohol abuse although it would not be
enough to prevent him from working. R. 445.

Plaintiff
argues that the ALJ should not have relied on the opinion of Dr. Neil Lewis,
the non-examining medical expert psychologist who testified at the hearing
after reviewing Plaintiff's records. R. 804-08; R. 441. The Commissioner argues
that the Plaintiff failed to show that his condition, even including his
history of alcohol abuse, precluded him from performing unskilled or
semi-skilled work at all exertional levels. R. 442 Finding 5. Other evidence in
the record, from the consultative examination by Dr. Oatley in September 2004,
during a time period when Plaintiff was abusing alcohol, revealed that he had
appropriate attention span and activity level, and had a cooperative and
pleasant mood. R. 440, 655-56. The Psychological Evaluation of Dr. Salter at
ACT Corporation who assessed Plaintiff as part of an alleged suicide threat in
September 2005, actually found no evidence of a mental disorder, impairment of
the emotional processes, or other suicidal ideation. R. 617. Dr. Salter noted
that Plaintiff had a serious alcohol/substance abuse problem; he was assessed
with a GAF of 71-80[ 3 ] at that time, and released for outpatient
treatment. R. 617. Other treatment notes from ACT Corporation psychologists
dated after Plaintiff's alleged onset date indicate he had intact attention,
concentration and memory; coherent thoughts; and at least fair insight and
judgment. R. 615, 619-22, 661, 667, 670, 672, 797-99). The ALJ's decision was
based on his assessment of the ACT Corporation treatment notes, Dr. Lewis'
opinion, and the opinions of the state agency psychologists (R. 440-41), and
appropriately assessed Plaintiff with a bipolar disorder and a history of
substance abuse. R. 439. The ALJ appropriately found that Plaintiff would experience
some residual depression even if abstaining from alcohol. R. 445. The ALJ's
decision was based on substantial evidence.

D.Past Relevant
Work

Plaintiff
argues that the ALJ erred in finding that Plaintiff is able to perform his past
relevant work as an assembler and general laborer because Plaintiff did not
have "substantial gainful activity" in those positions, and the VE
failed to consider his limitations in concentration, persistence and pace, and
completing a normal workday and workweek. The Commissioner argues that the
assembler and general laborer positions could constitute substantial gainful
activity, even if part-time or not profitable, and alternatively, the deli
worker position constituted substantial gainful activity.

The
ALJ determined that Plaintiff was capable of performing his PRW as an
assembler, a deli worker, and a general laborer (R. 445, Finding 6) and
consequently found Plaintiff not disabled at the fourth step of the sequential
evaluation. R. 445, Finding 6; 20 C.F.R. §§ 404.1520(f), 416.920(f). Work
experience is relevant "when it was done within the last 15 years, lasted
long enough for [the claimant] to learn to do it, and was substantial gainful
activity." 20 C.F.R. §§ 404.1565(a), 416.965(a). Plaintiff argues that he
did not have "substantial gainful activity" as defined under the SSA
regulations for two of the three positions, i.e., earnings that average
more than $780.00 in 2002, $800.00 in 2003, $810.00 in 2004, and $830.00 in
2005. See Doc. 13-1 (The Commissioner's Tables of SGA Earnings
Guidelines and Effective Dates Based on Year of Work Activity contained in his
Program Operations Manual System at DI 10501.015).

Plaintiff also contends that the VE's
testimony about the assembler and general laborer jobs; he testified he was
uncertain about "the vocational exhibit" because it "was fairly
vague and sparse. . . it didn't say what, when, where, how, or anything.. . the
DOT codes list hundreds, if not close to thousands of various assembler jobs. .
. I guess. . . It did not indicate. . .it was just general labor various. . .
if we are talking laborer or day laborer." R. 821. Plaintiff contends that
a discussion of impairments then ensued, and exactly what job Plaintiff
actually performed was "never resolved or defined." R. 821-24.

The
Commissioner argues that, under the SSA regulations, the assembler and general
laborer positions could constitute substantial gainful activity, even if done
on a part-time basis or if a profit is not realized. 20 C.F.R. §§ 404,1572(a),
416.972(a). Alternatively, even assuming arguendo that Plaintiff is
correct, the Commissioner argues that Plaintiff's past relevant work as a deli
worker indisputably constitutes substantial gainful activity.

Plaintiff
reported in SSA forms that he worked as a deli worker/cook on a full-time basis
from 1990 to 2001, and the earnings records suggest that this work was
substantial gainful activity. R. 485, 513-14, 530-31. Plaintiff reported in the
SSA form — work history report that his deli worker/cook job involved assisting
customers, cutting meats, and stocking products, and this work did not require
technical knowledge or skills. R. 515, 532. Plaintiff also testified that he
worked at Danny's, a meat market and catering company for approximately seven
years, until he got divorced and relocated to Florida. R. 812. The VE testified
that, after reviewing the exhibits, consistent with Plaintiff's testimony and
work history report, Plaintiff's past work involved a combination of deli
cutter, slicer, and short order cook, which was unskilled to lower-level,
semi-skilled work. R. 821.

Plaintiff
argues, as to all three positions, that, in responding to the ALJ's
hypothetical, the VE did not take into account Plaintiff's limitations in
concentration, persistence and pace, and completing a normal workday and
workweek. Plaintiff contends that the VE responded that moderate limitations in
concentration, persistence or pace is "an impairment that may affect, but
it certainly does not preclude the ability to function and sustain pace, persistence,
and concentration." R. 822. Plaintiff mischaracterizes the VE's response
by ignoring the ALJ's exact hypothetical, which did include a limitation of
work that was either unskilled or semi-skilled, i.e., with an SVp OF 2
OR 3. r. 822. tHE VE clarified his answer to say:

For the work 40 hours and additionally it would have even
less impact when we are talking simple one and two step repetitive unskilled,
or lower level semi-skilled impairments.

Certainly, skilled employment would require, would have a
significantly greater impact if there is an impairment be it moderate or even
mild when we are talking technical concentrations, and the judgments required
to do the job as well as any additional training to obtain the skills necessary
to do skilled work.

The ALJ determined Plaintiff had the RFC to
perform unskilled, to semi-skilled work at all exertional levels, and based on
the VE's testimony, the ALJ appropriately concluded that Plaintiff could
perform his past work as a deli worker. R. 445. Accordingly, the ALJ's decision
is based on substantial evidence.

IV. CONCLUSION

The
ALJ carefully considered Plaintiff's circumstances in this case and analyzed
them in relation to the exacting disability standard under the Social Security
Act. For the reasons set forth above, the ALJ's decision is consistent with the
requirements of law and is supported by substantial evidence. Accordingly, the
Court AFFIRMS the Commissioner's decision pursuant to sentence four of
42 U.S.C. § 405(g). The Clerk of the Court is directed to enter judgment
consistent with this opinion and, thereafter, to close the file.

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